#IamJaneDoe – Why Kavanaugh’s Confirmation Matters

Sometimes I wish US Senators read my blog. Most likely I won’t be able to write this in enough time to make my point to the people who need to hear it the most. That’s a real shame.

I didn’t know about #IamJaneDoe until last night.
What I’m talking about is the documentary I Am Jane Doe, a film which follows three survivors of sex trafficking here in the United States. The very short version is that all three victims were under the age of 18 when they were abducted, forcibly addicted to substances, and then sold for sex online via a website Backpage.com (“Backpage”). The families of these girls were able to rescue them, but the damage was permanent. All of the families sued the website, and only one of the cases made it to trial. The rest were dismissed.

At issue in each of the cases was a statute called CDA § 230 (“CDA 230”), enacted in 1996. This statute gave interactive content providers on the Internet immunity from federal and state civil suits, as well as immunity from state criminal prosecution. Federal criminal prosecutions could still go forward (as of this writing, there appears to be an active investigation by the DOJ). Regardless, CDA 230 was used by Backpage to avoid civil and criminal penalties for coaching sex traffickers on how to get away with selling children for sex online.

The first lawsuit in the documentary did not do much to distinguish Backpage from being a co-conspirator in criminal and civil misconduct. As a result, it was dismissed fairly quickly. Two other suits took a different tack – they actually alleged that Backpage was helping child predators. This is a pretty important distinction, one that a 2d year law student could grasp with ease. However, celebrated jurists in federal courts across the country apparently lack that capacity, and they still applied immunity even when a plaintiff could show that the defendant was helping to sell their children’s bodies for sex.

Fortunately – and a bit ironically considering today’s political climate – Congress actually acted on this. It passed an amendment to CDA 230 to correct federal judges’ protection of child sex traffickers. President Trump signed it into law on April 11, 2018.

None of this would have been necessary if federal and state judges knew the difference between co-conspiracy and third party publishers.
Some pretty famous judges – and even one former US Supreme Court Justice – have all contributed to this so-called “Teflon shield” of CDA 230. It enabled an Internet company to profit off of the selling of children for sex. Judges couldn’t fathom the difference between an Internet company acting as an independent content provider and an actual co-conspirator. It seemed like these judges would go to more lengths to apply immunity rather than let a plaintiff try to prove co-conspiracy. That’s a big deal, especially since the courts were supposed to look at the evidence in the light most favorable to the plaintiffs.

#IamJaneDoe highlights why we need justices who can grasp cases brought in front of them.
Not every judge is equal, and not every judge has the capacity to understand a legal argument. The sad truth is that a case can fail and justice miscarried for no other reason than the judge couldn’t follow what was going on. This is a very common thing when the law is trying to catch up with the pace of technological progress.

Regardless of personal opinions about Judge Kavanaugh’s past conduct, I think the allegations did raise questions regarding his ability to understand the law. As I’ve hopefully shown above, failure to understand the implications of an argument can lead to some disastrous consequences for people. It gives shelter to the perpetrators of crime, and fails to protect victims.

None of these issues (to my knowledge) were brought up in debates or proceedings regarding the Kavanaugh nomination. At the very least, one would think Congress might want to find out if a potential justice would protect sex traffickers over exploited children. But the questions were never asked, and all we have is a nominee lampooned for his behavior after the allegations were made public.

Finally, to put all of this in perspective, the conduct in the documentary lasted over a period of about 9 years (roughly 2008 to 2017). During that time, the DOJ did not appear to investigate or even be aware of Backpage, something which could have prompted earlier changes to the law. Also, there were mentions of conflicting rulings elsewhere in other circuits, but the US Supreme Court denied further appeal in the last plaintiff’s appeal. What this means is that the US Supreme Court turned a blind eye to an ongoing criminal act.